Ex Parte Baker

Patent Trial and Appeal Board

Feb 12, 2013

10796584 (P.T.A.B. Feb. 12, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CLARK R. BAKER, JR.
__________

Appeal 2011-009111
Application 10/796,584
Technology Center 3700
__________

Before ERIC GRIMES, LORA M. GREEN, and ERICA A. FRANKLIN,
Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1-4, 6-16, and 18-22.
1
We have jurisdiction
under 35 U.S.C. § 6(b).

1
Claims 5, 17, and 23-27 are also pending (App. Br. 2; Ans. 2). Claims 5
and 17 have been indicated as being free of the prior art, and claims 23-27
stand withdrawn from consideration (id.).
Appeal 2011-009111
Application 10/796,584

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STATEMENT OF THE CASE
Claims 1 and 13 are the independent claims on appeal, and read as
follows:
1. A method of detecting the presence of mixed venous and arterial
blood pulsation in tissue, comprising:
receiving first and second electromagnetic radiation signals from a
blood perfused tissue portion corresponding to infrared and red wavelengths
of light;
obtaining a measure of a phase difference between the first and
second electromagnetic radiation signals;
comparing the measure with a threshold value to form a comparison;
detecting the presence or absence of venous pulsation using the
comparison; and
indicating the presence of venous pulsation to a caregiver if venous
pulsation is present.

13. A device for detecting the presence of mixed venous and arterial
blood pulsation in tissue, comprising:
means for receiving first and second electromagnetic radiation signals
from a blood perfused tissue portion corresponding to infrared and red
wavelengths of light;
means for obtaining a measure of a phase difference between the first
and second electromagnetic radiation signals;
means for comparing the measure with a threshold value to form a
comparison;
means for detecting the presence or absence of venous pulsation using
the comparison; and
means for indicating the presence of venous pulsation to a caregiver
when venous pulsation is present.

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Application 10/796,584

3
The following ground of rejection is before us for review:
Claims 1-4, 6-16, and 18-22 stand rejected under 35 U.S.C. § 103(a)
as being rendered obvious by the combination of Diab,
2
Swedlow,
3
and
Masimo
4
(Ans. 4).

We reverse.

ISSUE
Does the preponderance of the evidence support the Examiner’s
conclusion that the combination of Diab, Swedlow, and Masimo renders the
claimed method and device obvious?

FINDINGS OF FACT
FF1. The Examiner relies on Diab for teaching a system “for detecting the
presence of mixed venous and arterial blood pulsation in tissue” (Ans. 4).
FF2. The Examiner finds that Diab teaches “obtaining a measure of a phase
difference between said first and second electromagnetic radiation signals
(paragraphs 0389-0391, fig. 25B, elements 694,692, 690), comparing said
measure with a threshold value to form a comparison (paragraph 0387, fig.
25B, elements 660, 662,696); and detecting the presence or absence of
venous pulsation using said comparison (paragraphs 0019, 0368)” (id.).

2
Diab et al., US 2003/0036689 A1, published Feb. 20, 2003.
3
Swedlow et al., US 5,662,106, issued Sep. 2, 1997.
4
Goldman et al., MASIMO SIGNAL EXTRACTION PULSE OXIMETRTY,
16 J. CLIN. MONIT. 475-483 (2000) (“Masimo”).
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FF3. Specifically, the Examiner finds that “the Diab [ ] reference in Figure
25B and in paragraphs 0389-0396 of the specifications [sic] discloses
calculating the phase differences between the red and infrared signals and
compares it with a threshold value to detect the presence of venous blood
pulsation” (id. at 6).
FF4. The Examiner relies on Masimo for teaching that it is known in the art
that “the primary cause of noise in transmissive pulse oximetry
measurements is motion artifact caused by the movement of venous blood in
the finger” (id. at 4 (emphasis removed)).
FF5. The Examiner relies on Swedlow for teaching indicating “the
presence of venous pulsation to a caregiver if venous pulsation is present”
(id.).
FF6. Diab relates “to the processing of measured signals, containing a
primary signal portion and a secondary signal portion, for the removal or
derivation of either the primary or secondary signal portion when little is
known about either of these components” (Diab, p. 1, ¶ 3). Diab teaches that
the method “is especially useful for physiological monitoring systems
including blood oxygen saturation systems” (id.).
FF7. As taught by Diab, “a composite signal may contain noise and
desirable portions” (id. at 1, ¶5).
FF8. Diab teaches that a phase difference module “calculates the difference
in phase between the corresponding data points from the phase modules” (id.
at 31, ¶ 389). Diab teaches that “[i]f the magnitude of the phase difference
between any two corresponding points is less than a particular threshold ….
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then the sample points qualify,” but “[i]f the phase of two corresponding
sample points is too far apart, then the sample points are not used” (id.).
FF9. Diab teaches that for the “sample points which qualify, a ratio is taken
in the ratio module,” and “[f]or those points which do not qualify, the
saturation is set to zero at the output of the saturation equation ….” (id. at
32, ¶393).
FF10. Diab teaches that both the arterial and venous saturation may be
obtained (id. at 32, ¶395).
ANALYSIS
Appellant argues that Diab “discusses a type of phase difference
measurement between red and IR signals,” but argue that the “measurement
is not obtained to form a comparison with a threshold to detect the presence
of venous pulsation” (App. Br. 8). Rather, Appellant asserts, “if the phase
difference between a red and IR point is low enough, the points are used to
calculate a saturation value” (id.). That is, according to Appellant, Diab at
paragraphs 0389-0391, relied upon by the Examiner (FF3) for teaching
detecting venous pulsation, in fact teaches calculation of arterial and venous
saturation (App. Br. 8).
We find Appellant’s arguments persuasive. In KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 415 (2007), while the Supreme Court
emphasized “an expansive and flexible approach” to the obviousness
question, it also reaffirmed that “rejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
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conclusion of obviousness.” Id. at 418 (quoting In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006) (emphasis added)).
Here, while the Examiner asserts that paragraphs 0389-0391 of Diab
relate to calculating venous pulsation (FF3), as noted by Appellant, those
paragraphs in fact relate to determining arterial and venous saturation
(FF10). As the Examiner has not explained how calculating arterial and
venous saturation would allow the ordinary artisan to calculate venous
pulsation, we reverse the rejection.

REVERSED

cdc